Moss v. Rowland

• Decision Date: 06 June 1868
• Citation: 66 Ky. 505
• Parties: Moss v. Rowland, & c.
• Court: Kentucky Court of Appeals

66 Ky. 505

Moss v. Rowland, & c.

Court of Appeals of Kentucky.

June 6, 1868

1. The death of the defendant having been suggested, and the action continued for revivor against his executrix, at the next term of the court she filed her answer without objection, and without a formal revivor. Afterwards, the plaintiff brought the case to the court of appeals, and the judgment was reversed without any question by the plaintiff or the court as to her right to defend as executrix. The case being brought to the court of appeals a second time by the plaintiff, it is certainly now too late for him to make that question.

2. The right of an executrix resident in Missouri to defend a suit in this State, is not extinguished by her subsequent marriage. Our statute to that effect does not apply to foreign representatives whose rights depend on foreign law.

3. According to the common law, which, without proof to the contrary, must be presumed to be the law of Missouri, the State of the residence of the executrix, her executorial functions were neither extinguished nor suspended by her subsequent marriage.

4. The local law requiring a foreign representative, to execute bond before suing in this State, does not apply to one who is sued here and chooses to defend.

5. The record, showing no objection to the submission of the case only a few days after the filing of the amended answer, the hearing may not have been premature or erroneous. As there was no objection to the hearing, no motion for a continuance or for a rehearing, the court of appeals will not adjudge the hearing premature or erroneous.

6. The circuit court dissolving the injunction, rendered judgment for fourteen dollars, ten per cent. damages, when ten per cent. on the amount enjoined amounted to a few cents less than seven dollars. For this error, the judgment for damages is reversed.

APPEAL FROM WOODFORD CIRCUIT COURT.

PORTER & GREATHOUSE, For Appellant,

CITED--

Civil Code, sec. 560.

2 Bibb, 328; Veech vs. Pennebaker.

4 Dana, 289; McIlvoy vs. McIlvoy's ex'r.

OPINION

ROBERTSON JUDGE.

The appellant, on a charge of usury, enjoined an unpaid balance on a judgment obtained against him by Henry Rowland. Before answer, Rowland's death was suggested by Moss' counsel, and, at his instance, the case was continued for revivor against Clarinda Rowland as the decedent's executrix; and when, at the next term, without formal revivor, her...